No Rational Basis for Traditional Marriage?

I have been a bit slow on the uptake considering the recent Prop 8 ruling in California and the confirmation of Elena Kagan to the Supreme Court. Some of this has been work-related, replete with long meetings and other social functions, but part of me has also been content to read much of the opinions surrounding the Prop 8 ruling in California.

For those not familiar with the case, rather than summarize it here, I’ll merely point to the wiki for background.

But here is the gist of the opinion: “Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”

A quick gut check gives me pause. Is there really no legitimate reason – not even one – for the state to promote heterosexual marriage to the exclusion of homosexual marriage? The “legitimate reason” does not even have to be correct, it need only be plausible. Almost any justification will suffice.

Despite the research, think tanks, studies, history, popular opinion, and health considerations for promoting traditional marriage, is there really not even one reason to maintain the status quo? Apparently not for Judge Walker.

The proponents of Prop 8 do not have a significant burden here. In fact, the burden is quite minimal. They need only stand on the weight its research, statistical studies, and history to support its contention. The plaintiffs have the burden – seemingly impossible – to show that the government does not even have a conceivable reason for protecting marriage.

The plaintiffs carried the day. I cannot say I am not surprised by the result of Judge Walker’s opinion. We are, of course, partially in the alternate reality that is California and the Ninth Circuit. From a gut reaction, I find it incredulous that there is not a rational basis reason for traditional marriage.

Rational basis view is perhaps the easiest burden to satisfy.

What is interesting is that Judge Walker appears to ratchet up rational basis review for homosexuals. Homosexuals, of course, are not recognized as a suspect class, but increasingly, the class forms a bubble between rational basis review and intermediate scrutiny (the latter reserved for gender and illegitimacy). This has been come to be known amongst constitutional scholars as rational basis “with bite.” It has happened before with Romer v. Evans and Lawrence v. Texas.

Nonetheless, homosexuality is not a suspect class and is not protected as such and it is not within the province of a district court judge to create such precedent. I’m still making my way through Judge Walker’s opinion (it’s 136 pages), but it is certainly disingenuous to assert that the state has no legitimate interest in protecting traditional marriage. He would have been on much, much sounder legal footing had he ruled the for the Prop 8 proponents and then forced the plaintiffs to appeal to the Ninth Circuit and then to the Supreme Court. As it stand now, it seems like the decision is on a collision course to the Supremes.

Opinion is here.

An Amicable Divorce?


[Note: I realize it has been more than two months since my last post, but the lack of posting was due more to time constraints than anything else.  For the past number of weeks, I have been studying for the bar exam and now that I finished it last week, I can move on to more appealing (and less stressful) ventures – this blog included.]

While reading the Arizona Republic last week, I came across an article by Karina Bland that certainly piqued my interest: “friendly” divorces.  If it sounds suspect, you’re probably right. Divorce has entered the mainstream; arguably it has been here for quite some time but the various permutations of divorce are now becoming in vogue.  Now, those couples deciding to ditch those marital vows have at least two flavors from which to choose.

The “traditional” divorce – per the article – is a drawn out and bitter process with a unhealthy power grab for assets and control; children are used as pawns or as sacrificial negotiating chips.  Couples with children may go to enormous lengths to “stick it” to the other spouse – custody battles, visitation rights, etc.  The battles are sometimes fought even before entering into a marriage.  Sadly, this is often a protracted manner of dividing the marital estate.  What was once confidential is now disclosed – the dirty laundry, skeletons, and family secrets.  Even after the decree is finalized, the next battleground sometimes becomes indoctrinating the children with one viewpoint or another toward the other spouse all while attempting to inoculate the same children from anything else to the contrary.  Even without children or money, couples still manage to hire attorneys to wage war: car payments, retirement accounts, spousal support, etc.

Nonetheless, there is good news: there is an alternative to a nasty divorce.  The bad news: the solution is not not-getting-divorced.

The new trend for divorce is: friendly divorces.  Theoretically, it purports to to away with animosity, protect the children, and allow the ex-spouses to once again live fulfilling, healthy lives.  In these cases, couples decide to split yet attempt to do it cordially.

As Karina Bland summarizes:

This new kind of divorced mom and dad might attend parent-teacher conferences together, work jointly to get one kid to Little League and the other to piano lessons – even if it’s not technically their visitation day – and share calendars electronically so Dad can arrange to take the kids when mom’s out of town on business.

In other words, even though the parents have split they can still “play nice” and accommodate one another for the sake of the children.  How altruistic.

What Karina Bland omits is the darker side of the matter: divorce is still divorce no matter how friendly it purports to be.  As such, its consequences are felt immediately and it continues to reverberate in the children.  Choosing between the “traditional” and “amicable” separation is a false dichotomy.  In fact, those options are a bit like asking whether it is better to fail a test miserably or to barely fail a test.  Sure, it is probably better to barely fail a test just as it is probably better to have an amicable divorce.  But choosing between these two options is absurd – especially when there is a third alternative – not getting divorced.

Subject to certain and very limited exceptions, choosing divorce is choosing to fail.  And when tests of life arrive as they inevitably do, spouses always have the option to pass.  A barely passing grade is always better than a barely failing grade – especially since, in life, there are no retakes.

To be clear, there is a large gulf between a barely failing and barely passing.  A marriage that stays intact may exhibit characteristics found with those deciding to get divorced (e.g. bickering, martial discord, etc).  To a certain extent, more than a few marriages  may be dysfunctional.  At the same time, the salient characteristics of spousal unity is obvious: the the married couple is at least committed enough to not take that next step to sever the wedding promises.  Although not ideal by any means, children of “barely passing” spouses at least witness that some vows are forever, even in the absence of love; thus choosing a partner carefully is important.  Such children also need not balance two different families – two different mothers and two different fathers; the family unit is structurally sound.

On the other hand, a “barely failing” couple attempts to emulate those couples that do not get divorced.  In this case, the couple purports to split on friendly terms and look out for the best interests of the children.  To that end they negotiate elaborate custody arrangements and maintain civility.  Try as they may, they cannot esteem the marital institution or imbue the importance of commitment to their children – at least not in action.  The goal of stability is thwarted as well.  Children of these broken marriages do not have fathers one hundred percent of the time; nor do they have mothers one hundred percent of the time.  Instead, they live in the twilight between mom five days a week and dad two days a week – or some permutation thereof.  The situation becomes even more complicated when one spouse remarries.  There is no true stability; there is shuffling from one place to another and sometimes the introduction of new “family” members.

Certainly if a couple decides to divorce, legally they may.  The law may provide certain safeguards to stave off that result (a ninety day mandatory cooling off period, court ordered marital counseling).  But the law also, quite detrimentally, permits dissolution quite easily as well (through no-fault divorce).  Obviously a couple embarking on the path should at least marginally consider the interests of the children. (Hint: children do better when parents are together).

The mere decision to divorce is lamentable, be it traditional or “friendly.”  One option is not better than the other when the end result is a marital failure.


Prenuptial Agreements: Brief Thoughts On Community Property

In my community property class today, the topic of discussion centered on prenuptial agreements and whether a couple should sign one.

The basic fact pattern was as follows: one spouse has more assets and won’t marry without it, but also strongly desires to be married. The person with fewer assets doesn’t care at all, and is happy to agree to a prenuptial and to marry if it will make the other person happy.

Our group of four diverged sharply on whether a couple should sign a prenuptial. One argument, in favor of the agreement, was that careful negotiation could balance the equities. If we plan for death and other significant events, it only makes sense to prepare the just-in-case scenario. On the other hand, prenuptials do seem selfish and sets the marriage off to a rocky foundation. In essence, one spouse is saying, “I love you BUT, if we can’t work out difficulties, I want to keep everything that I’ve made.” I’m of the opinion that prenuptial agreements are antithetical to the institution of marriage. Essentially, the wedding vows “until death do us part” becomes only aspirational language as opposed to a binding covenant. Going into a marriage with an escape clause precludes a spouse from giving himself/herself completely to the marriage.

The problem I have with the fact patter is that one of the spouses strongly desires to be married, but refuses to marry without out. This is inherently selfish. Rephrased, it sounds like this: “I want the benefits of marriage, and I really like you however sometimes things get tough and if we can’t make it work, then let’s keep our assets separately like we were never married in the first place.” Enforcing these agreements creates a perverse incentive to protect oneself to the maximum extent possible in the event of a divorce.

Like it or not, by enforcing these agreements at least one spouse is taking advantage of the other. Even with attorney representation, these agreements never put parties on equal footing; the marriage partnership remains unbalanced and allows one spouse to hold back from committing completely to the relationship.

Recession Slows Almost Everything: Even Marriage

As an array us U.S. Census data comes to light today, some of the findings are bleak: more people are unmarried now than ever before. While this may come as good news for seeking suitors, it appears they are in the minority.

The data suggests that Americans are delaying marriage for the sake of pursing higher education or due to lack of financial independence.

With people struggling to find work in this economy, the wait is understandable.

The full article can be read here.

On the bright side, 76% of those who have ever been married have married just once.

See here.

Until Death Do Us Part: Arizona’s Efforts In Strengthing Marriage – A.R.S. 25-901

Although not heavily broadcast, Arizona is one of three states that has legislation strengthening the bonds of marriage when it passed A.R.S. 25-901 – otherwise known as the “covenant marriage” statute. Louisiana and Arkansas are the only two other states recognizing this union.

Why “Covenant Marriage”?
Covenant marriage strengthens families by removing the easy out secured by “no-fault” divorce legislation. By denying a spouse the ability to cite “irreconcilable differences” as grounds for separation, it encourages couples to confront issues, communicate, and ultimately strengthen the family. Divorce is often quite painful. The wedding day vows recited purport to last “until death do us part.” The reality sadly is this: if the marriage does not last, the pain from divorce probably will. Even worse, its effects ripple not only though the couple, but also through the children.

Requirements:
As fairly inferred from the statute, covenant marriage differs from a traditional marriage license by imposing certain requirements. These requirements essentially glue the marriage together not only by limiting the grounds for divorce but also by requiring full disclosure regarding the intent and seriousness of the marital sacrament. Here are the two main requirements:

  1. 1. A written statement of declaration:

    We solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for as long as they both live. We have chosen each other carefully and have received premarital counseling on the nature, purposes and responsibilities of marriage. We understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling. With full knowledge of what this commitment means, we do declare that our marriage will be bound by Arizona law on covenant marriages and we promise to love, honor and care for one another as husband and wife for the rest of our lives.

  2. 2. Pre-marital counseling
    A pre-marital counselor or member of the clergy must discuss the seriousness of marriage and the limited grounds for divorce. Furthermore, a sworn, notarized statement must be submitted by the marital counselor.

These two main requirements serve the foundation for entering into a covenant marriage. This is not entered into light-heartedly. The statement the spouses swear impose upon them an obligation: preserve the marriage, seek help in times of discord, love, honor, and care for the other throughout the rest of their lives. Granted, those last words are oft-repeated, but often fall by the wayside in stormy times. But promising those words under A.R.S. 25-901, and coupled with marital counseling, it ensures that when the storms of marriage arise, the couple will weather through them.

Grounds for Divorce:
A covenant marriage strengthens the cords of marriage; it does not lock a couple into an airtight bond with no basis for breach. Grounds for divorce exist, but only under the eight reasons as established by A.R.S. 25-903. Of those eight, half codify a finding of serious fault: adultery, felony conviction with imprisonment, physical or sexual abuse, and abandonment. The last four allow for more lax standards: agreement by both spouses to dissolve the marriage, drug or alcohol abuse, and spouses living in separate domicile for two years or legal separation for a period of time.

The most significant departure from “no-fault” divorce is that no one spouse may simply obtain a divorce without cause. Seeking divorce outside one of these eight permissible categories is virtually futile; even within them, a divorce is not necessarily automatic. After all, the couple agreed to take reasonable measures to preserve the marriage – including marital counseling.

What if I’m already married?
Even those already married are eligible to convert their marriage into a covenant marriage. The main requirement, besides a nominal fee, is a signed declaration of intent to convert the marriage into a covenant marriage. This is not uncommon.

Some Arizona courts already have pre-printed forms to fill out. Once the clerk of the court files the document, the work is complete. Unlike those entering into covenant marriage initially, those already married need not complete marital counseling.

For more information, or to initiate the process of obtaining a covenant marriage license or converting to one, contact the court for information (for formatting’s sake, I am including both Pima and Maricopa county and not every county court). Alternatively, click here for more information.

Maricopa County
201 W. Jefferson
Phoenix, AZ 85003
(602) 506-3676
http://www.clerkofcourt.maricopa.gov


Pima County
110 W. Congress
Tucson, AZ 85701
(520) 740-3200
http://www.cosc.co.pima.az.us